Payne v. Moore

• Court: Court of Appeals of Indiana
• Citation: 67 N.E. 1005,31 Ind.App. 360
• Parties: PAYNE v. MOORE et al.
• Decision Date: 26 June 1903

31 Ind.App. 360
67 N.E. 1005

PAYNE
v.
MOORE et al.

Appellate Court of Indiana, Division No. 2.

June 26, 1903.

On petition for rehearing. Petition overruled.

For former opinion, see 66 N. E. 483.

COMSTOCK, P. J.

Appellees Moore & Moore ask a rehearing in this cause upon the alleged error of the court in holding that the first paragraph of the complaint did not show a cause of action. The holding was upon the authority of Moellering v. Evans, 121 Ind. 195, 22 N. E. 989, 6 L. R. A. 449. The case was cited by appellant, and the argument against the sufficiency of the paragraph based upon said case. Appellees met the argument with the claim that that case, to quote from appellees' brief, “was not applicable to a party wall built, as in this case, one half on each of the adjoining lots; each adjoining proprietor owning one half of the wall, and having an easement in the other half.” This position was fairly taken as an admission that, if the paragraph did not show that the wall in question was a party wall, the case was controlling. It did not show such fact, and the reason upon which appellees contended the case was not applicable failed. But counsel insist that the averments of this paragraph that aver that defendants negligently and unlawfully did the excavation that caused plaintiffs' building to fall are sufficient to make it good. The characterization of the acts, without averments showing that the acts were unlawfully done, is not sufficient. The purpose of a party in doing a particular thing is not material, if he had the right to do it.

[67 N.E. 1006]

Appellee Moore testified, over appellants' objection, in his examination in chief, to the value of different items of property in question, by reference to an invoice made by himself and his wife with a view of selling a half interest in the same to a third party; the prospective purchaser taking no part in the invoice. Upon cross-examination, appellants propounded to him the following questions: “I will ask this witness to state on your cross-examination, in reference to the value that you fixed on this type that you had on hands at the time that this building fell, what was the fair market value of that type that you had on hands at that time, if placed on the market for sale, without any reference to the list price?” “Now, then, do you know, without reference to the figures that you testified from here- Do you know what the fair market value, without any reference to any list price or any...